ARTICLE THE LOOMING 2010 CENSUS: A PROPOSED JUDICIALLY MANAGEABLE STANDARD AND OTHER REFORM OPTIONS FOR PARTISAN GERRYMANDERING

Transcription

1 ARTICLE THE LOOMING 2010 CENSUS: A PROPOSED JUDICIALLY MANAGEABLE STANDARD AND OTHER REFORM OPTIONS FOR PARTISAN GERRYMANDERING LAUGHLIN MCDONALD* Gerrymandering hinders voters from protecting their rights and voicing their interests through their votes, and the coming 2010 census and attendant redistricting underscore the need for a consistently applied standard for claims of partisan gerrymandering. Redistricting plans have withstood legal challenges because courts have been unable to interpret the conflicting Supreme Court rulings on partisan gerrymandering claims. Nothing in the Constitution expressly prohibits gerrymandering, and until Baker v. Carr, the Supreme Court had treated claims of unfair districting as nonjusticiable. This Article describes the Court s decisions in Baker and in Davis v. Bandemer, in which the Supreme Court finally held partisan gerrymandering claims to be justiciable. It analyzes the judiciary s struggle with the Bandemer standard that required plaintiffs to show that a districting plan had both a discriminatory purpose and a discriminatory effect in order to succeed on a claim of partisan gerrymandering. This Article highlights the Court s fractured opinions in partisan gerrymandering cases challenging legislative redistricting that took place in Pennsylvania, Texas, and Georgia after the 2000 census. Drawing on past Justices views on partisan and racial gerrymandering, this Article proposes a three-part standard for adjudicating claims of partisan gerrymanders as well as other options for reform. I. INTRODUCTION The 2010 census is almost upon us and will trigger redistricting at all levels of government federal, state, and local to comply with Article I, Section 2 of the U.S. Constitution and the one person, one vote, or equal district population, standard of the Fourteenth Amendment. 1 And if the past is prelude to the future, the redistricting will be rife with partisan gerrymandering. Now is the time to formulate a workable standard for adjudicating * Director of the American Civil Liberties Union Voting Rights Project. B.A., Columbia University, 1960; LL.B., University of Virginia, The phrase one person, one vote was first used by the Supreme Court in Gray v. Sanders, 372 U.S. 368, 381 (1963), which invalidated Georgia s county unit system, a method of nominating candidates for statewide office that gave 121 rural counties with a minority of the population sixty percent of the unit votes, and thus control of the nomination process. The county unit system was passionately defended by many white politicians as necessary to protect the state from sinister and subversive elements in the form of Negroes, Yankee influence, labor unions, agents of the Soviet Union, etc. JOSEPH L. BERND, GRASS ROOTS POLITICS IN GEORGIA 16 (1960); see also LAUGHLIN MCDONALD, A VOTING RIGHTS ODYSSEY: BLACK ENFRANCHISEMENT IN GEORGIA (2003).

2 244 Harvard Journal on Legislation [Vol. 46 claims of partisan gerrymandering so that equality of voting power becomes a reality and not simply a lofty but unattainable goal. The harm in political gerrymandering, as one court has put it, is that it is an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good. 2 A group that is denied by partisan gerrymandering the effective exercise of its vote is necessarily deprived of the ability to protect its rights. Because elected officials are free to disregard its needs and concerns, that group is denied an effective voice in policy making decisions. As described by the Supreme Court, the right to vote is preservative of all rights. 3 Part II of this Article will discuss the origins of partisan gerrymandering. Part III discusses the Supreme Court s decision in Davis v. Bandemer 4 and the justiciability of claims of partisan gerrymandering. Part IV describes the difficulties courts have had in applying Davis. Part V discusses blatant partisan gerrymandering in Pennsylvania, Texas, and Georgia following the 2000 census. Based on standards proposed by Justices in partisan and racial gerrymandering cases, Part VI proposes a judicially manageable, three-part standard for adjudicating claims of partisan gerrymandering: (1) a predominantly partisan purpose; (2) disproportionate electoral results; and (3) the existence of an acceptable alternative. Finally, Part VII explores legislative and administrative options for reform of the redistricting process. II. THE ORIGINS OF PARTISAN GERRYMANDERING Gerrymandering gets its name from Elbridge Gerry, the former governor of Massachusetts, who in 1812 approved a redistricting plan containing a bizarre, salamander-shaped district designed to enhance the political fortunes of his own political party. 5 Critics, combining Gerry and salamander, derided the plan as a gerrymander. 6 There was a strong backlash to Gerry s redistricting plan, and he lost in his bid for reelection. 7 In drawing districts, jurisdictions generally apply traditional redistricting principles, such as compactness, contiguity, keeping political subdivi- 2 LULAC v. Perry, 548 U.S. 399, 456 (2006) (citation and quotation omitted). 3 Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) U.S. 109 (1986). 5 See id. at 164 n.3. Although Gerry was its namesake, partisan gerrymandering predated Gerry. Patrick Henry has been credited with an earlier attempt to gerrymander a congressional district containing James Madison s home to prevent his election to Congress. See ROBERT LUCE, LEGISLATIVE PRINCIPLES 396 (1930). 6 See id. 7 See GEORGE ATHAN BILLIAS, ELBRIDGE GERRY: FOUNDING FATHER AND REPUBLICAN STATESMAN 323 (1976). However, he ran for Vice President of the United States that same year and in a reversal of fortune, was elected to office with James Madison as President. See id. at 324.

3 2009] A Judicially Manageable Standard for Gerrymandering 245 sions intact, preservation of the cores of existing districts, and maintenance of communities of interest. 8 Another redistricting principle, population equality, is determined by calculating a district s deviation from an ideal district size. Ideal district size is determined by dividing the total population by the number of seats involved. Districting plans with a total population deviation (the sum of the largest plus and minus deviations) below 10% are generally regarded as complying with one person, one vote. 9 In addition to one person, one vote, jurisdictions are required to comply in redistricting with Section 2 of the Voting Rights Act, which prohibits minority vote dilution. 10 Section 2 provides that a voting practice is unlawful if it results in discrimination if, based on the totality of circumstances, it provides minorities with less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 11 Compliance with one person, one vote, however, does not insulate a plan from partisan bias. As Robert G. Dixon has said: A mathematically equal vote which is politically worthless because of gerrymandering or winner-take-all districting is as deceiving as emperor s clothes. 12 Some observers have noted that all line-drawing is designed to advance the interests of particular voters or groups, whether Republicans, Democrats, incumbents, farmers, coastal residents, African Americans, whites, or any other group. 13 Since Gerry s time, gerrymandering has traditionally been used to refer to election districts drawn to give an unfair or disproportionate advantage to a particular political group or party. 14 According to Justice Abe Fortas, gerrymandering is the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes. 15 Partisan gerrymandering, which uses techniques similar to those which can dilute minority voting strength, 16 has been described as any redistricting 8 DeWitt v. Wilson, 856 F. Supp. 1409, 1413 (E.D. Cal. 1994); see also Mahan v. Howell, 410 U.S. 315, 325 (1973) (stating that districts have a tradition of respecting the integrity of the boundaries of cities and counties in drawing district lines ). 9 White v. Regester, 412 U.S. 755, 764 (1973) (finding that a population variation between two districts of 9.9% was not an equal protection violation when the average deviation of all districts was 1.82%); Brown v. Thomson, 462 U.S. 835, (1983) (finding that population deviations under 10% are minor deviations and insufficient to make out a prima facie case for an equal protection violation). 10 Voting Rights Act of 1965, Pub. L. No , 79 Stat. 437 (codified at 42 U.S.C (2000)) U.S.C. 1973(b); see also Thornburg v. Gingles, 478 U.S. 30, (1986). 12 ROBERT G. DIXON, JR., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW AND POLITICS 22 (1968). 13 For example, Justice White observed that districting is itself a gerrymandering in the sense that it represents a complex blend of political, economic, regional, and historical considerations. Wells v. Rockefeller, 394 U.S. 542, (1969) (White, J., dissenting); see also DIXON, supra note 12, at 462 (stating that [a]ll districting is gerrymandering. ). 14 WEBSTER S NINTH NEW COLLEGIATE DICTIONARY 515 (1983). 15 Kirkpatrick v. Preisler, 394 U.S. 526, 538 (1969) (Fortas, J., concurring). 16 Three techniques are frequently used in racial gerrymandering to dilute minority voting strength: cracking, stacking, and packing. See Frank R. Parker, Racial Gerrymander-

4 246 Harvard Journal on Legislation [Vol. 46 practice which maximizes the political advantage or votes of one group, and minimizes the political advantage or votes of another. 17 Even without its namesake, gerrymandering has continued. A notorious and illustrative example comes from South Carolina, which adopted a congressional redistricting plan in 1882 that has been described as one of the most complete gerrymanders ever drawn by a legislative body. 18 At that time, in the aftermath of Reconstruction, registered black voters outnumbered white voters 116,969 to 86, To counter this imbalance, the white Democrat-controlled legislature drew the state s seven congressional districts so that only one, the seventh, contained a significant majority of black, and thus Republican, voters. 20 Described as the boa constrictor district, it ran from Columbia almost to Savannah, a distance of 150 miles. 21 It split six counties and, at one point, extended into the Atlantic Ocean to exclude some Democratic precincts. 22 III. THE JUSTICIABILITY OF PARTISAN GERRYMANDERING There is nothing in the federal constitution that expressly prohibits gerrymandering, and prior to Baker v. Carr, 23 the Supreme Court had treated claims of unfairness in districting as political questions that could not be considered by the federal courts. The traditional view was expressed in a 1946 opinion by Justice Felix Frankfurter, who said [i]t is hostile to a democratic system to involve the judiciary in the politics of the people. 24 Courts, he said, ought not to enter this political thicket. 25 But in Baker, the Court found that the political question doctrine involved the relationship between the judiciary and the coordinate branches of the Federal Governing and Legislative Reapportionment, in MINORITY VOTE DILUTION 89, (Chandler Davidson ed., 1989). Cracking refers to fragmenting concentrations of a minority population and dispersing them among other districts to ensure that all districts contain white voting majorities. See id. at 89. Stacking refers to combining concentrations of a minority population with greater concentrations of a white population to ensure that districts contain white voting majorities. See id. at 92. Packing refers to concentrating as many minorities as possible in as few districts as possible to minimize the number of majority-minority districts. See id. at Id. at Donald Norton Brown, Southern Attitudes Toward Negro Voting in the Bourbon Period, , at 150 (1960) (unpublished Ph.D. dissertation, University of Oklahoma) (on microform file with Sterling Memorial Library, Yale University). 19 See id. (citing 7 APPLETON S ANNUAL CYCLOPEDIA AND REGISTER OF IMPORTANT EVENTS 748 (D. Appleton and Co )). 20 See id.; see also J. MORGAN KOUSSER, COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION 27 (1999); J.W.B., Flaws in the Solid South, N.Y. TIMES, July 13, 1882 at See id. (citing James W. Patton, The Republican Party in South Carolina, , in ESSAYS IN SOUTHERN HISTORY (Fletcher M. Green ed., 1914). 22 See id. (citing Patton, supra note 21) U.S. 186 (1962). 24 Colegrove v. Green, 328 U.S. 549, (1946) (holding that a complaint about congressional districting was nonjusticiable). 25 Id. at 556.

5 2009] A Judicially Manageable Standard for Gerrymandering 247 ment, and not the federal judiciary s relationship to the States. 26 The doctrine was thus no bar to a court s remedying the gross inequities in voting power among rural and urban voters produced by severely malapportioned legislatures and congressional delegations. 27 Legislative districting, generally, was held justiciable. However, it was not until 1986 that the Supreme Court held in Davis v. Bandemer 28 that partisan gerrymandering was justiciable and could violate the Equal Protection Clause of the Fourteenth Amendment. The district court had found that Indiana s state apportionment plan, challenged by Democrats, contained a built-in bias favoring the majority party, the Republicans. 29 Districts had been drawn with irregular shapes, the plan used a peculiar mix of single-member and multimember districts, and lines failed to adhere consistently to political subdivision boundaries Democrats were stacked into some districts with large Democratic majorities to minimize the number of Democratic controlled districts, and split in others to create safe Republican majorities. 31 The district court had invalidated the plan because it deprived Democrats of proportional representation. 32 A majority of the Court (White, Brennan, Marshall, Blackmun, Powell, and Stevens), relying in part on Baker, held that claims that a political group should have the same chance to elect representatives of its choice as any other political group were justiciable. 33 The majority further held that its racial gerrymandering cases support a conclusion that this case is justiciable. 34 While acknowledging that the claims were different, it concluded that these differences do not justify a refusal to entertain such a case. 35 Three justices (Burger, O Connor, and Rehnquist) opined that claims of political gerrymandering were not justiciable. 36 The majority agreed with the district court that in order to succeed on a claim of partisan gerrymandering plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. 37 A plurality of the Court recognized that, [a]s long as redistricting is done by a legislature, it should not U.S. at 210 (holding that legislative apportionment cases are justiciable and finding that the District Court in Baker had misinterpreted Colegrove). 27 In his dissent, Justice Frankfurter described the majority opinion as a massive repudiation of the experience of our whole past in asserting destructively novel judicial power. Id. at 267 (Frankfurter, J., dissenting) U.S. 109 (1986). 29 Id. at Id. 31 Id. at Id. at Id. at Id. at Id. 36 See id. at (Burger, J., concurring in the judgment); id. at 144 (O Connor, J., concurring in the judgment). 37 Id. at 127; see also id. at 161 (Powell, J., concurring in part and dissenting in part).

6 248 Harvard Journal on Legislation [Vol. 46 be very difficult to prove that the likely political consequences of the reapportionment were intended. 38 In addition to a discriminatory purpose, plaintiffs must show that the legislative districting has a discriminatory effect. While declining to overturn the district court s finding of discriminatory intent, a plurality of the Court (White, Brennan, Marshall, and Blackmun) concluded that the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination 39 and reversed the lower court, which had relied on the lack of proportionate results in one election. 40 Rather, the plurality said, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter s or a group of voters influence on the political process as a whole. 41 The plurality s discriminatory effects standard was thus two-pronged: (1) lack of proportional representation as shown by a history (actual or projected) of disproportionate results and (2) consistently degraded influence on the political process, meaning strong indicia of lack of political power and the denial of fair representation. 42 The plurality conceded its standard involved a difficult inquiry but believed it recognized the delicacy of intruding on this most political of legislative functions while maintaining consistency with the Court s one person, one vote and racial vote dilution cases. 43 In dissent, Justice Powell, joined by Justice Stevens, was of the opinion that the finding of partisan gerrymandering should be affirmed. 44 The standard he proposed for proof of a constitutional violation, in addition to showing that a challenged plan had a discriminatory purpose and diluted voting strength, included factors bearing on the fairness of the plan: the shapes of voting districts[,]... adherence to established political subdivision boundaries, the nature of the legislative procedures by which the apportionment law was adopted[,] and legislative history reflecting contemporaneous legislative goals. 45 IV. THE DIFFICULTIES IN APPLYING DAVIS V. BANDEMER The lower federal courts have been significantly divided over the meaning of the consistently degrade standard of Davis v. Bandemer. More importantly, they have applied it in such a draconian fashion that it has become essentially dead letter law. Only one reported decision, discussed below, has ever invalidated a districting plan on the ground that it was a partisan gerry- 38 Id. at 129 (plurality opinion). 39 Id. at Id. at Id. at 132 (emphasis added). 42 Id. at Id. at Id. at 185 (Powell, J., concurring in part and dissenting in part). 45 Id. at 173.

7 2009] A Judicially Manageable Standard for Gerrymandering 249 mander, and that decision was subsequently rendered moot by action of the state legislature adopting a new method of elections. 46 A. Cases Dismissing Claims of Partisan Gerrymandering One of the first post-bandemer partisan gerrymandering cases was Badham v. Eu, 47 in which the lower court dismissed Republicans claim challenging congressional redistricting in California. The court applied the Bandemer test stating that in order to succeed on a partisan gerrymander claim, plaintiffs must prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. 48 The court assumed there were sufficient allegations of intent, and applied Bandemer s bifurcated effects test. 49 The first effects inquiry, according to the court, concerns the history (actual or projected) of disproportionate [election] results. 50 The court did not resolve this issue because it held plaintiffs did not satisfy the second prong of the results standard, for failing to show strong indicia of lack of political power and the denial of fair representation. 51 According to the court, the Republicans did not allege that they had been shut out of the political process as a whole, that anyone had interfered with Republican registration, organizing, voting, fund-raising,... [or] campaigning, or that Republicans were not free to speak out on issues of public concern. 52 The court said that, under the circumstances, [i]t simply would be ludicrous for plaintiffs to allege that their interests are being entirely ignore[d] in Congress The court took judicial notice that forty percent of California s congressional seats were held by Republicans, the state had a Republican governor and a Republican U.S. Senator, and a recent Republican governor (Ronald Reagan) was President of the United States. 54 The Supreme Court summarily affirmed by a vote of 6 to Under this analysis in Badham v. Eu, no major political party assuming its members could vote, raise money, campaign, and speak out on issues would ever be able to prove partisan gerrymandering, no matter how deliberately discriminatory the redistricting plan. Other post-bandemer challenges were disposed of in a similar manner. In Terrazas v. Slagle, the court dismissed Republicans partisan gerryman- 46 See Ragan v. Vosburgh, No , 1997 WL , at *6 (4th Cir. Apr. 10, 1997) F. Supp. 664 (N.D. Cal. 1988). 48 Id. at 669 (quoting Bandemer, 478 U.S. at 127). 49 See id. at Id. at 670 (quoting Bandemer, 478 U.S. at 139). 51 Id. (quoting Bandemer, 478 U.S. at 139). 52 Id. 53 Id. at See id. 55 Badham v. Eu, 488 U.S (1989).

8 250 Harvard Journal on Legislation [Vol. 46 dering claims against congressional and state senate redistricting in Texas. 56 The court applied the Bandemer standard that plaintiffs must show both a discriminatory purpose and effect. 57 In interpreting the second prong of the discriminatory effect test which requires a showing that the system would consistently degrade a voter s or a group of voters influence on the political process as a whole the court interpreted the phrase political process as a whole to mean all the structures of the state governmental system. 58 The Republicans claimed they carried half or more of the state in elections but never had a majority in the State House or Senate and thus had no influence over the redistricting process. 59 The court, however, noted that over the past 15 years in Texas a Republican governor had twice been elected who could veto legislation, which the house had the ability to sustain. 60 Under the circumstances, the court concluded plaintiffs failed to show that they would be unable to effectively influence legislative outcomes. 61 Again, the standard applied by the court, the inability to influence any structure of the state governmental system, would make it virtually impossible for a political party to sustain a partisan gerrymandering claim. Other courts have applied a similarly broad definition of the political process in dismissing claims of partisan gerrymandering. 62 In one case, Martinez v. Bush, 63 the court made it significantly more difficult for plaintiffs to succeed on a claim of partisan gerrymandering. In rejecting Democrats claim of partisan gerrymandering of congressional districts in Florida, the court required the plaintiffs to establish three factors, first established in Thornburg v. Gingles as required for proof of racial vote dilution under Section 2 of the Voting Rights Act 64 : (1) that the protected group is sufficiently large and geographically compact ; (2) that the protected group is politically cohesive ; and (3) that other voters ordinarily the white majority vote sufficiently as a bloc that they usually defeat mi F. Supp (W.D. Tex. 1993). The redistricting plan has been described as the shrewdest gerrymander of the 1990s, MICHAEL BARONE, THE ALMANAC OF AMERICAN POLITICS 2002, at 1448 (2001), which used incredibly convoluted lines to create Democratic controlled districts and packing Republicans into just a few suburban areas. MICHAEL BARONE, THE ALMANAC OF AMERICAN POLITICS 2004, at 1510 (2003). 57 See supra note 37 and accompanying text. 58 Terrazas, 821 F. Supp. at See id. 60 See id. 61 Id. at See, e.g., Pope v. Blue, 809 F. Supp. 392, 397 (W.D.N.C. 1992) (rejecting a Bandemer claim because plaintiffs failed to show that they have been or will be consistently degraded in their participation in the entire political process, not just in the process of redistricting ); O Lear v. Miller, 222 F. Supp. 2d 850, 857 (E.D. Mich. 2002) (dismissing a claim of partisan gerrymandering where plaintiffs did not show that victorious Republican candidates would be indifferent to the interests of their Democratic constituents or that [Democrats] have been completely shut-out of the political process ) F. Supp. 2d 1275 (S.D. Fla. 2002). 64 Thornburg v. Gingles, 478 U.S. 30, (1986).

9 2009] A Judicially Manageable Standard for Gerrymandering 251 nority candidates of choice. 65 If plaintiffs met this initial burden, they would then be required to establish the intent and actual effects elements expressly required under Bandemer. 66 The Democrats alleged that, though they were about fifty percent of the voting population in Florida, Republicans likely controlled eighteen (seventy-two percent) of the state s twentyfive congressional districts. 67 While conceding that the districts were drawn to favor Republicans, 68 the court dismissed the case because it found that the plaintiffs had failed to establish the three Gingles factors. 69 The added burden of the three Gingles factors would make it much harder to establish a claim of partisan gerrymandering. 70 The Gingles-then-Bandemer standard of Martinez, however, has not been applied by other courts. B. The North Carolina Exception One court, however, has given the phrase the political process as a whole used in Bandemer a narrower construction. In Republican Party of North Carolina v. Martin, the plaintiffs contended that the method of electing superior court judges in North Carolina was a political gerrymander intended to deprive Republicans of rights protected by the First and Fourteenth Amendments. 71 Under the challenged system, the judges were nominated in primaries held in local districts, with the successful candidates running against each other in a general statewide election. 72 Between 1900 and when the lawsuit began, no Republicans had ever been elected in hundreds of elections for superior court judges. 73 The district court dismissed the complaint, holding that it raised a nonjusticiable political question. 74 The court of ap- 65 Martinez, 234 F. Supp. 2d at 1326 (citing Gingles, 478 U.S. at 50 51). 66 Id. at Id. at Id. at Id. at For other cases relying upon Bandemer in denying claims of partisan gerrymandering, see White v. Alabama, 867 F. Supp. 1571, 1576 (M.D. Ala. 1994) (rejecting Republicans Bandemer claim that the statewide method of electing appellate court judges was discriminatory on the ground that Republicans had been successful in other statewide elections); Marylanders for Fair Representation, Inc. v. Schaefer, 849 F. Supp. 1022, 1038 (D. Md. 1994) (holding that plaintiff cannot produce sufficient evidence to satisfy the demanding test established in Bandemer to demonstrate discriminatory effect ); Fund for Accurate and Informed Representation, Inc. v. Weprin, 796 F. Supp. 662, 669 (N.D.N.Y. 1992) (dismissing Republicans claim that the plan for the New York Assembly denied them fair and effective representation because Republicans hold a majority of the Senate seats... [and the party] therefore plays an active role in the state political process ); Ill. Legislative Redistricting Comm n v. LaPaille, 782 F. Supp. 1272, 1276 (N.D. Ill. 1991) (dismissing Democrats claim of partisan gerrymandering because the plaintiffs failed to show that they will be unable to effectively influence legislative outcomes ); Anne Arundel County Republican Cent. Comm. v. Admin. Bd. of Election Laws, 781 F. Supp. 394, 401 (D. Md. 1991) ( [P]laintiffs fail to make a [ Bandemer] showing of vote dilution. ) F.2d 943, 947 (4th Cir. 1992). 72 See id. 73 See id. at Id. at 946.

10 252 Harvard Journal on Legislation [Vol. 46 peals reversed and remanded on the Fourteenth Amendment claim, holding that the Republicans claim was justiciable under Bandemer, 75 and that the allegations of the complaint were sufficient to state a claim. 76 In reaching this conclusion, the court [read] the phrase the political process as a whole... to speak to the alleged unconstitutional effects of the challenged electoral scheme on the relevant political sphere and confine[d its] analysis to evaluation of the claimed effect of the method of electing superior court judges on the political process of election of superior court judges within North Carolina. 77 The court acknowledged that Republicans had been elected governor, to the United States Senate, the United States House of Representatives, the North Carolina General Assembly, the state court of appeals, and the state supreme court, and that Republicans had not been excluded from participating in the affairs of their party or from the process from which candidates were nominated and elected. 78 But, the court held, to conclude that this would preclude a claim under Bandemer would render nugatory its holding that political groups may bring claims of partisan gerrymandering. 79 On remand, the district court found the state s plan unconstitutional, 80 but on appeal, the court remanded again with instructions that the district court consider the subsequent elections conducted in 1994, which it held were directly at odds with the recent prediction by the district court that Republican electoral exclusion would continue unabated into the future: All eight of the Republican candidates vying for superior court judgeships prevailed at the state level. 81 These results, the court said, cast significant doubt on the findings and decision of the trial court. 82 The case was remanded for further proceedings. The district court, on remand, once again found the state s system unconstitutional. 83 However, the state passed legislation providing that in the future all superior court judgeships would be elected by districts. 84 The court held that that the action of the legislature rendered the case moot, 85 and this holding was affirmed by the court of appeals Id. at Id. at Id. at 956 n Id. at Id. at Republican Party of N.C. v. Hunt, No , 1996 WL 60439, at *2 (4th Cir. Feb. 12, 1996). 81 Id. 82 Id. at *4. 83 Ragan v. Vosburgh, Nos , , , 1997 WL , at *4 (4th Cir. Apr. 10, 1997). 84 See id. 85 Id. 86 Id. at *6. In Smith v. Boyle, 959 F. Supp. 982, 983 (C.D. Ill. 1997), however, the court refused to apply Bandemer to a claim of partisan gerrymandering in the election of judges, labeling it a nonjusticiable political question.

11 2009] A Judicially Manageable Standard for Gerrymandering 253 V. PARTISAN GERRYMANDERING AFTER THE 2000 CENSUS In addition to the non-enforcement of Bandemer, two other developments have greatly facilitated partisan gerrymandering. One is the advances in computer technology, and the other is the Supreme Court s decision in Easley v. Cromartie. 87 In earlier times, when redistricting was done by hand using paper maps and census tables, it would take days or weeks to draw a statewide plan. But now, with sophisticated redistricting software, and with population and voting age population furnished by the census down to the precinct and bloc levels, it is possible to draw a statewide plan in a matter of hours. And by downloading voter turnout and election results onto a computer, one can also calculate with a great deal of accuracy just how districts will perform whether they will be safe for Democrats, safe for Republicans, help the incumbents stay in office, or likely throw them out. 88 New computer technology has been described as an extraordinary change in the ability to slice thin the lines, and while it is a welcome assistance in redistricting, it has also been acknowledged as bringing with it a high cost of creating much greater potential for abuse. 89 In Easley, the Court rejected a claim by white voters that congressional districts in North Carolina had been impermissibly drawn on the basis of race. 90 Noting the extraordinary caution that district courts must use to avoid treading upon legislative prerogatives, the Court concluded that no constitutional violation could be found if plaintiffs failed to show that race, rather than politics, predominately accounted for the redistricting results. 91 Moreover, the Court did not mention Bandemer, or suggest that there were constitutional limitations on politically driven redistricting. A number of states, most notably Pennsylvania, Texas, and Georgia, apparently took the non-enforcement of Bandemer 92 and the decision in Easley to mean that as long as a plan was based on political behavior, 93 virtually anything was constitutionally permissible. A. Pennsylvania Redistricting Although the governor of Pennsylvania was a Republican and both state legislative chambers were controlled by Republicans, the state legislature was unable to agree upon and enact a congressional redistricting plan U.S. 234 (2001). 88 See Micah Altman et al., From Crayons to Computers: The Evolution of Computer Use in Redistricting, 23 SOC. SCI. COMPUTER REV. 334, (2005). 89 Session v. Perry, 298 F. Supp. 2d 451, 457 (E.D. Tex. 2004) U.S. 234 (2001). 91 Id. at See supra Part IV.A. 93 Cromartie, 532 U.S. at See Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 535 (M.D. Pa. 2002).

12 254 Harvard Journal on Legislation [Vol. 46 Prominent Republican figures, including Karl Rove, a political consultant to President George W. Bush, began pressing the governor and Republican members of the legislature to adopt the state senate s proposed plan to counter the enactment of allegedly pro-democratic plans in other states. 95 The Pennsylvania Republicans subsequently enacted a plan without involvement by the Democrats and which the governor signed into law in January Although Democrats were a slight majority of registered and actual voters in the state, the Republican plan was designed to create Republican majorities in thirteen (or sixty-eight percent) of the state s nineteen congressional districts. 97 The Pennsylvania plan was challenged by Democrats, and the court agreed it had been enacted intentionally to discriminate against Democrats and give Republicans a super-majority of congressional seats. 98 But it dismissed the claim of partisan gerrymandering on the ground that as long as the plaintiffs were not prevented from registering to vote; organizing with other like-minded voters; raising funds on behalf of candidates; voting; campaigning; or speaking on matters of public concern, they were not shut out of the political process, and, as a consequence, the challenged plan had no actual discriminatory effect on them. 99 Again, such a stringent standard, as long as the United States remains a representative democracy, would make it virtually impossible for any political group ever to sustain a claim of partisan gerrymandering. 100 The Supreme Court agreed to hear the Pennsylvania case, and, in a fractured opinion that lacked a clear majority, it affirmed the dismissal of the partisan gerrymander claim. 101 It is worth looking closely at the opinion to see what, if any, standard for partisan gerrymandering might attract a majority of votes on the present, or a future, Court. The plurality opinion was written by Justice Scalia and joined by then Chief Justice Rehnquist, and Justices O Connor and Thomas. It concluded that since no judicially manageable standards for political gerrymandering had emerged since Bandemer, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided. 102 Paradoxically, and adding to the judicial confusion surrounding the issue, the plurality conceded that excessive injection of politics [in dis- 95 Id. 96 Id. 97 Id. at Id. at Id. at The state subsequently enacted another plan to remedy a violation of one person, one vote that was also challenged as a partisan gerrymander. This claim was dismissed for the reasons discussed by the court in the earlier challenge. See Vieth v. Pennsylvania, 241 F. Supp. 2d 478, (M.D. Pa. 2003). 101 See Vieth v. Jubelirer, 541 U.S. 267, 306 (2004). 102 Id. at 281.

13 2009] A Judicially Manageable Standard for Gerrymandering 255 tricting] is unlawful. So it is, and so does our opinion assume. 103 However, [e]ighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. 104 Justice Kennedy concurred in the judgment, but concluded that claims of partisan gerrymandering were justiciable. 105 He did not, however, articulate a standard for adjudicating such claims but instead acknowledged that a standard, based on the Fourteenth Amendment and perhaps the First Amendment, might still emerge in the future. 106 Justice Stevens in dissent attempted to do what Justice Kennedy failed to do articulate a standard for partisan gerrymandering. 107 But the standard he advocated when partisanship is the legislature s sole motivation when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage 108 is so onerous that it would likely never be met. 109 It would be a simple matter for a legislature to enact a blatant partisan gerrymander and successfully defend it by articulating a nonpartisan motivation and incorporating one or more traditional districting criteria into its plan, such as contiguity, avoiding splitting precinct lines, or preserving communities of interest, however they might be defined. Justice Stevens himself concedes that his standard would cover only a few meritorious claims. 110 Justice Souter in dissent, joined by Justice Ginsburg, would require a plaintiff to establish a prima facie case of partisan gerrymandering consisting of five elements. 111 First, the plaintiff must be a member of a cohesive political group, which would normally be a major party. 112 Second, the challenged plan must have paid little or no heed to... traditional districting principles... [such as] contiguity, compactness, respect for political subdivisions, and conformity with geographic features. 113 Third, there must be specific correlations between [departures] from traditional districting principles and the distribution of the population of [the plaintiff s] group. 114 Fourth, an alternative plan could be drawn that complied with traditional districting principles without diluting the voting strength of plaintiff s political group. 115 Fifth, the defendants acted intentionally to manipulate the shape of the district to dilute the voting strength of the plaintiff s political 103 Id. at Id. at Id. (Kennedy, J., concurring in the judgment). 106 Id. at See id. at 317 (Stevens, J., dissenting). 108 Id. at Cf. supra Part IV.A (describing cases in which courts interpreted the Bandemer standard so broadly that it was rarely met). 110 Vieth, 541 U.S. at 339 (Stevens, J., dissenting). 111 See id. at 347 (Souter, J., dissenting). 112 Id. 113 Id. at Id. at See id. at 349.

14 256 Harvard Journal on Legislation [Vol. 46 group. 116 Once the plaintiff established a prima facie case, the defendants would then have the burden of justifying their plan by reference to objectives other than naked partisan advantage, such as complying with the Voting Rights Act or one person, one vote. 117 Justice Souter acknowledged that his plan might not catch all partisan gerrymanders, but it would make it possible for courts to identify at least the worst cases of gerrymandering, and to provide a remedy. 118 Justice Breyer in dissent argued that partisan gerrymandering would violate the Fourteenth Amendment in at least one instance, similar to the one before the Court, namely, the unjustified use of political factors to entrench a minority in power. 119 He proposed a continuum, that the more entrenched the minority hold on power becomes, the less evidence courts will need that the minority engaged in gerrymandering to achieve the desired result. 120 But he conceded that such entrenchment, and the need for judicial intervention, would be rare since a majority normally can work its political will. 121 The case before the Court, however, presented an appropriate one for judicial intervention given the fact that Democrats were a majority of voters in Pennsylvania, while the challenged plan created Republican majorities in thirteen (sixty-eight percent) of the state s nineteen congressional districts. 122 According to Justice Breyer, relevant factors in proving a partisan gerrymander under such circumstances included whether: the districting was done more than once in the decade; the plan departed radically from traditional redistricting criteria; the party with a minority of the votes had obtained, or likely would retain, a majority of the seats; the failure of the majority party to obtain a majority of the seats could not be explained by neutral factors such as the existence of multiple parties; and the plan could not be justified or explained other than as an effort to secure a partisan political advantage. 123 B. Texas Redistricting When the Republicans in Texas gained full control of the legislature in 2003, Democratic legislators fled the state in an effort to deprive the Republicans of a quorum necessary to adopt a new congressional districting plan. 124 The tactic ultimately failed, and the legislature enacted a mid-decade redistricting plan in October 2003, 125 designed to increase the number of Republi- 116 Id. at Id. at Id. at Id. at 360 (Breyer, J., dissenting). 120 Id. at Id. at See id. at See id. at See Session v. Perry, 298 F. Supp. 2d 451, 458 (E.D. Tex. 2004). 125 See id.

15 2009] A Judicially Manageable Standard for Gerrymandering 257 cans in the state s thirty-two member congressional delegation from fifteen (forty-seven percent) to twenty-two (sixty-nine percent). 126 Democrats challenged the Texas congressional districting plan as a partisan gerrymander, but their claim was dismissed. The district court concluded: [t]here is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage. 127 The court noted, however, that the Supreme Court in Bandemer was unable to formulate a manageable standard for addressing such claims, and that in Texas redistricting advantages can be overcome through the political process. 128 The decision of the district court in the Texas congressional redistricting case was appealed, but the Supreme Court remanded it for further consideration in light of the opinion in Vieth. 129 Perhaps the Court was giving the district court an opportunity to do what it had itself been unable to do, articulate a manageable standard for adjudicating claims of partisan gerrymandering. At least that is how the district court interpreted the remand. 130 The district court, however, again rejected the gerrymander claim noting that the Texas plan is not more partisan in motivation or result, including the impact on the number of competitive districts, than the Pennsylvania plan upheld in Vieth. 131 The Court agreed to hear the appeal of the Texas case but in yet another fractured decision the court failed to set a standard for adjudicating claims of partisan gerrymandering. 132 The plaintiffs challenged the Texas congressional redistricting plan as an unconstitutional political gerrymander on the grounds that it was a middecennial redistricting solely motivated by partisan objectives. 133 A majority of the Court (Justices Kennedy, Stevens, Ginsburg, Souter, and Breyer) did not address the justiciability of partisan gerrymandering; 134 Chief Justice Roberts and Justice Alito explicitly took no position on the question. 135 Consistent with their positions in Vieth, Justices Scalia and Thomas argued that partisan gerrymandering claims were not justiciable. 136 Justice Kennedy found the claim of partisan gerrymandering not convincing, because some of the lines were drawn based on more mundane and local interests, while a number of line-drawing requests by Democratic state legislators were 126 Id. at Id. at Id. at See Jackson v. Perry, 543 U.S. 941 (2004). 130 See Henderson v. Perry, 399 F. Supp. 2d 756, 762 (E.D. Tex. 2005) ( [W]e can only fairly read the remand to suggest that the Justice providing the fifth vote [i.e., Justice Kennedy] sees the possibility of a workable standard emerging from this case.... ). 131 Id. at See LULAC v. Perry, 548 U.S. 399 (2006). 133 See id. at See id. at 414 ( We do not revisit the justiciability holding [in Davis].... ). 135 See id. at 493 (Roberts, J., concurring in part, concurring in the judgment in part, and dissenting in part). 136 See LULAC, 548 U.S. at 511 (Scalia, J., concurring in the judgment in part and dissenting in part).

16 258 Harvard Journal on Legislation [Vol. 46 honored. 137 The plaintiffs proposed sole-intent standard, focused on middecennial redistricting, was rejected for the further reason that it did not show a burden, as measured by a reliable standard, on the complainants representational rights. 138 Justice Stevens, joined by Justice Breyer, dissented. 139 Because a desire to minimize the strength of Texas Democrats was the sole motivation for the adoption of Plan 1374C, he wrote, the plan cannot withstand constitutional scrutiny. 140 By taking action for the sole purpose of advantaging Republicans and disadvantaging Democrats, the State of Texas violated its constitutional obligation to govern impartially. 141 Relying on expert testimony given in the case, Justice Stevens also concluded that the plan clearly has a discriminatory impact on the opportunities that Democratic citizens have to elect candidates of their choice. 142 As for adjudicating partisan gerrymandering claims in general, Justice Stevens proposed a multi-part test. 143 First, a plaintiff would have to show that she was a resident of a district changed by a new districting plan. 144 Second, she would have to prove an improper purpose, that redistricters subordinated neutral districting principles to political considerations and that their predominant motive was to maximize one party s power. 145 Third, a plaintiff would have to prove a discriminatory effect: (1) her candidate of choice won... under the [preexisting] plan; (2) her residence is now in a district that is a safe seat for the opposite party; and (3) her new district is less compact than the old district. 146 Justice Souter, joined by Justice Ginsburg, concurred in that portion of Justice Kennedy s opinion holding claims of partisan gerrymandering to be justiciable, but concluded that nothing would be gained by applying the standard he would have applied in Vieth to the facts of the current case. 147 Justice Scalia, joined by Justice Thomas, lamented that the Court had again disposed 137 Id. at (opinion of Kennedy, J.). 138 Id. at See id. at 447 (Stevens, J., concurring in part and dissenting in part). 140 Id. at Id. at Id. at 467 (referring to an analysis by the state s expert Ronald Keith Gaddie, Ph.D.). 143 See id. at See id. at Id. at Id. at 476. In a footnote, Justice Stevens identifies objective factors that can be used in evaluating claims of partisan gerrymandering: (1) the number of people who have been moved from one district to another, (2) the number of districts that are less compact than their predecessors, (3) the degree to which the new plan departs from other neutral districting criteria, including respect for communities of interest and compliance with the Voting Rights Act, (4) the number of districts that have been cracked in a manner that weakens an opposition party incumbent, (5) the number of districts that include two incumbents from the opposite party, (6) whether the adoption of the plan gave the opposition party, and other groups, a fair opportunity to have input in the redistricting process, (7) the number of seats that are likely to be safe seats for the dominant party, and (8) the size of the departure in the new plan from the symmetry standard. Id. at 473 n See id. at 483 (Souter, J., concurring in part and dissenting in part).

17 2009] A Judicially Manageable Standard for Gerrymandering 259 of a claim of partisan gerrymandering in a way that provides no guidance to lower-court judges and perpetuates a cause of action with no discernable content. We should simply dismiss appellants claims as nonjusticiable. 148 C. Georgia Redistricting Long before the 2000 census, the Democratic Solid South had faded into history. 149 In Georgia, however, Democrats still controlled the legislature and the Governor s office. In an effort to stem the rising Republican tide, the legislature used almost every known device to maximize the opportunities for Democrats and minimize those for Republicans in its 2002 redistricting of state legislative and federal congressional districts. If a seat was required to be eliminated in an area because of a decline in population, the lost seat was one held by a Republican. 150 Additionally, the most overpopulated districts were Republican-leaning districts while the most underpopulated were Democratic-leaning districts. 151 Republican incumbents were also paired together where possible to ensure that one or more would not return to the legislature following the 2002 elections. The House plan paired thirty-seven of the seventy-four Republican incumbents (fifty percent), but only nine of the 105 Democratic incumbents (less than nine percent). 152 The Senate plan paired ten (forty-two percent) of the twenty-four Republican incumbents, but only two (six percent) of the thirty-two Democratic incumbents. 153 Districts were frequently drawn totally without regard to compactness, but completely with regard to Democratic performance. 154 The state reintroduced multi-member districts, 155 a device which had previously been successfully challenged under the Voting Rights Act because it had been used to dilute black voting strength. 156 For example, rather than drawing four single-member districts in an area where one of the districts might elect a Republican, a four-member Democratic performance district was drawn instead. 157 The black percentages in the majority black districts were also taken down as much as possible, without sacrificing the 148 Id. at (Scalia, J., concurring in the judgment in part and dissenting in part). 149 See, e.g., DAN T. CARTER, FROM GEORGE WALLACE TO NEWT GINGRICH: RACE IN THE CONSERVATIVE COUNTERREVOLUTION, (1999); FRED M. SHELLEY ET AL., POLITICAL GEOGRAPHY OF THE UNITED STATES 300 (1996); Charles S. Bullock III, Creeping Realignment in the South, in THE SOUTH S NEW POLITICS: REALIGNMENT AND DEALIGNMENT 220 (Robert H. Swansbrough & David M. Brodsky eds., 1988). 150 See Larios v. Cox, 300 F. Supp. 2d 1320, (N.D. Ga. 2004). 151 See id. at , See id. at See id. at See id. at 1325, See id. at See Georgia v. United States, 411 U.S. 526, , 535 (1973) (noting an objection by the Attorney General to Georgia s use of multi-member districts). 157 Larios v. Cox, 300 F. Supp. 2d 1320, 1329, 1347, 1357 (N.D. Ga. 2004).